Charter Pacific Corporation Ltd v Commonwealth Scientific & Industrial Research Organisation

[1998] FCA 1362

CHARTER PACIFIC CORPORATION LIMITED v. COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION
COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION (Cross-Applicant) v. CHARTER PACIFIC CORPORATION LIMITED (Cross-Respondent)
No. QG 175 of 1996
FED No. 1362/98
Number of pages - 10
Practice and Procedure

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

COOPER J

Practice and Procedure - application to transfer proceedings to Supreme Court of Victoria - whether matter ought to be litigated in this Court - nature of claim - whether in the interests of justice the matter ought to be transferred.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4)

Trade Practices Act 1976 (Cth) s 86A(1)

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173

Lamshed v Lamshed (1992) 35 FCR 111

Mansell v Cumming (1989) 86 ALR 637

Commonwealth v Silverton Ltd (1991) 103 FLR 251

Tribond Developments Pty Ltd v Griffin (1997) 73 FCR 153

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

BRISBANE, 16 October 1998 (hearing), 28 October 1998 (decision)

#DATE 28:10:1998

Counsel for the Applicant:	B D O'Donnell QC
Solicitor for the Applicant:	McCullough Robertson
Counsel for the Respondent:	K Hargrave QC
Solicitor for the Respondent:	Freehill Hollingdale & Page

THE COURT ORDERS THAT:

1. Pursuant to s5(4)(b)(ii) of the Courts (Cross-Vesting) Act 1987 (Cth) and s86A(1) of the Trade Practices Act 1974 (Cth) proceedings QG 175 of 1996 and the matters arising for determination in it be transferred to the Supreme Court of Victoria.

2. The costs of and incidental to the motion for the transfer of the proceedings be costs in the cause.

3. The respondent pay the applicant its costs of and incidental to its notice of motion filed 3 July 1998 to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

COOPER J

The respondent seeks pursuant to s5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the CV Act") and s86A of the Trade Practices Act 1976 (Cth) ("the TPA") to have the proceedings transferred to the Supreme Court of Victoria.

The proceedings in this court were commenced by Charter Pacific Corporation Limited ("CPC") on 1 October 1996. In the proceedings CPC seeks damages for breach of contract and damages for contravention of s52 of the TPA.

The proceedings are the latest in a course of litigation between CPC and the Commonwealth Scientific and Industrial Research Organisation ("CSIRO") arising out of an alleged joint venture agreement for commercialisation of certain technology. The technology relates to optical variable devices, licensed under the names "Pixelgram" and "Exelgram". These devices involve computerised processes for producing optically variable images of any given art work, for example, a photograph, that when viewed from different angles reveals a variable image. This technology is used as optical security devices for protection of bank notes, credit cards and high security documents.

CPC instituted proceedings in the Supreme Court of Queensland in 1991 against CSIRO for specific performance of the alleged joint venture agreement. Those proceedings were settled in October 1991. The compromise provided, inter alia, that Tambabrook Pty Ltd ("Tambabrook"), a subsidiary of CPC would, upon the exercise of an option granted under the compromise, become entitled to a licence to commercially exploit the Pixelgram technology.

CPC and Tambabrook instituted proceedings on 13 July 1992 against CSIRO and the Reserve Bank of Australia ("RBA") (QG101 of 1992). In those proceedings CPC and Tambabrook sought to set aside the compromise agreement made in October 1991. CPC alleged were that it was induced to enter into the compromise by misrepresentations made by CSIRO. CPC and Tambabrook further alleged that because of misleading and deceptive conduct by RBA in making a false representation to Tambabrook's potential co-venturers, the possibility of their participation and access to their financial resources ceased and Tambabrook was unable to exercise the option. The alleged false representation was that RBA had an unresolved dispute with CSIRO concerning a claim to patent infringement by CSIRO of a patent held by RBA by commercial exploitation of the Pixelgram technology and that RBA was entitled to an interest in that Pixelgram technology.

CPC alleged that CSIRO acquiesced in the conduct of RBA and itself thereby engaged in misleading and deceptive conduct. Those proceedings were settled in September 1992 and the terms of settlement are contained in a written deed dated 26 September 1994 and executed by CSIRO, CPC and Tambabrook. The deed contained in clause 12 mutual releases in respect of the matters specified in the clause which included any claim, demand or liability arising from or related to the application and cross-claim in QG 101 of 1992.

CPC in its original statement of claim alleged that CSIRO had breached the settlement deed by failing to do all things reasonably necessary in a range of circumstances specified in the statement of claim. Those failures were alleged to constitute breaches of clauses 10.2(a), 10.3, 10.4, 10.5, 10.8, 10.13 and 17 of the deed. CPC also alleged that CSIRO, prior to and subsequent to the making of the deed, entered into a scheme or schemes as defined in respect of the technology which breached a warranty contained in clause 10.2(d) of the deed. That clause provided :-

"(d) except for the Technology Agreements, it has not, by itself or to the best of its knowledge by its licensees, entered into any other Scheme in respect of the Technology, Intermediate Technology or the future Technology other than:

with RBA, details of which have been provided to CPC in the letter referred to in clause 10.2(a)(iv); and

with Astor Universal Limited, being a licence of Exelgram, in terms largely similar to the licence of Exelgram to Leonard Kurz Gmbh and Co, which licence to Astor Universal Limited has not been executed by CSIRO; and

with Leonard Kurz Gmbh and Co relating to POPS, in that Leonard Kurz Gmbh and Co has indicated a willingness to assist CSIRO with funding of research and development of POPS, however, such research and development has not proceeded and details of the assistance are yet to be concluded;

with Leonard Kurz Gmbh and Co and customers or potential customers of Leonard Kurz Gmbh and Co limited details (without identification of such customers or potential customers) of which have been orally disclosed by a solicitor acting for CSIRO to CPC's solicitor and which are confirmed in a letter dated the date of entry into this Deed from DCB to KJD, which is to be released in confidence to CPC within 30 days of entry into this Deed or promptly following receipt of approval by Leonard Kurz Gmbh and Co, whichever is the earlier;"

CPC, in paragraph 33 of the statement of claim, pleaded that in giving the warranty CSIRO thereby made the representations pleaded in paragraph 12 of the statement of claim. Paragraph 12 merely pleaded the contents of clause 10.2(d). The effect of the pleading was that CSIRO represented that the contents of the warranty were correct. By paragraph 34 it was alleged that the representations in clause 10.2(d) were false and misleading because CSIRO had made the agreements in respect of the technology pleaded in paragraphs 16 and 29 of the statement of claim. By paragraph 36 of the statement of claim CPC pleaded that as a consequence of the conduct pleaded in paragraph 33, CPC had suffered loss and damage. No particulars of loss or damage were provided and the pleading was endorsed "Further particulars will be supplied prior to trial".

On 25 October 1996 the proceedings came before Kiefel J on the first directions hearing. On that day her Honour queried why the proceedings had been commenced in this court rather than the Supreme Court. Amongst other directions, her Honour ordered that CPC "file and serve full particulars of the s52 conduct pleaded by 2.12.96". Her Honour also stated that she would note the file that the issue of cross-vesting to the Supreme Court was to be addressed at the second directions hearing which was to be on the first available date after 14 February 1997.

On 14 February 1997 CSIRO filed a notice of motion returnable on 4 March 1997 seeking an order pursuant to s5 of the CV Act and s86A(1) of the TPA transferring the proceedings and the matters arising for determination to the Supreme Court of Victoria. The notice of motion was re-listed firstly for 7 May 1997 and then for 27 May 1997. On that date Mr Douglas of counsel appeared for CPC. He advised Drummond J that the supporting material of CSIRO had not been filed until 13 May 1997 and in consequence CPC was not then ready to argue the cross-vesting issue. Drummond J ordered that the motion to cross-vest the proceedings be adjourned sine die with liberty to each party to bring it back on for hearing on four weeks' notice to the other, such notice not to be given before 22 July 1997. His Honour made further directions as to discovery and inspection and adjourned the matter until 22 July 1997. The matter was re-listed before me for directions on 25 July 1997. On 21 July 1997 CPC filed a notice of motion seeking orders that the amended cross-claim of CSIRO be struck out.

On 25 July 1997, amongst other orders I made, I ordered :-

"5. That no further directions be given, and that no hearing take place in relation to the Respondent's Notice of Motion to cross-vest the proceedings until the following issues have been determined by the Court:

. The entitlement of Ian Hughes and Kevin Dart to inspect the confidential documents;

. The validity of the Respondent's claims for confidentiality;

. The Applicant's Notice of Motion to strike out the Amended Cross-Claim."

The confidentiality issues were resolved by orders made by me on 29 August 1997. I also ordered on that date that CSIRO deliver to CPC within twenty-one days its proposed repleaded cross-claim. If no objection was taken to it by CPC, the parties were directed to file a consent order giving CSIRO leave to replead in terms of the delivered document. If objection was taken by CPC, CSIRO was directed to apply for leave to file and serve an amended cross-claim in terms of the delivered document.

On 3 July 1998 CPC filed a notice of motion seeking leave to tax the costs orders made on 29 August 1997. That notice of motion was made returnable on 7 August 1998. The matter was also listed for directions on that date. On the directions hearing I gave CPC leave to file and serve an amended statement of claim in terms of a document dated 18 May 1998 and directed that CPC file and serve further and better particulars of its amended statement of claim by 14 August 1998. CSIRO was given leave to file and serve an amended cross-claim in the form of the document dated 27 October 1997. I also ordered that the notice of motion of CSIRO filed on 14 February 1997 seeking to cross-vest the proceedings to the Supreme Court of Victoria be listed for hearing on 16 October 1998.

The amended statement of claim of CPC was filed on 12 October 1998. It contained no particulars of the loss and damage allegedly suffered due to alleged misleading and deceptive conduct. The further and better particulars of the conduct alleged to be misleading and deceptive was particularised as :-

"The misleading and deceptive conduct was the conduct of the Respondent in warranting to the Applicant each of the matters set out in cl 10.2(d) of the settlement agreement, which conduct occurred at the time of execution of the settlement agreement."

By its amended statement of claim CPC substantially reformulated and particularised the conduct which it complained breached the deed of settlement. The amendments included a reformulation of paragraph 16 as to the schemes said to have been entered into by CSIRO which were not disclosed in clause 10.2(d) and thereby breached a warranty contained in the clause. The allegations previously contained in paragraphs 29 and 30 of the statement of claim were deleted from the pleading. The effect of the amendments, so far as the misleading and deceptive conduct claim is concerned, is to limit it to the matters pleaded in paragraph 16 of the amended statement of claim.

I have listed the history of the interlocutory steps in some detail for two reasons. Firstly, CPC submits that because of the delay in the hearing of the notice of motion I should refuse the relief on discretionary grounds or because this Court is substantially seized of the matter. Secondly, it is submitted that the involvement of the Court in the issues arising in the litigation is such that it should not be wasted and lost to the parties by transferring the proceedings out of the Brisbane Registry.

It is clear from the directions given by Kiefel J that the question of cross-vesting was to be determined after the pleadings closed with the claim made under s52 of the TPA being fully particularised. The pleadings on CPC's claim closed with the filing by CPC of its amended statement of claim on 12 October 1998, CSIRO having filed its defence to the amended statement of claim on 1 October 1998 it having received in advance the amended statement of claim. It is also clear that the notice of motion seeking cross-vesting was put to one side by Drummond J and thence myself until the pleadings and other interlocutory disputes were resolved. In the interim, the matter has proceeded in respect of finalising the pleadings and completing or substantially advancing issues of discovery, inspection and confidentiality. Irrespective of the outcome of this application that work will not be lost nor will it be necessary to replicate it. The overview also shows that nothing has occurred which gives me any particular advantage over any other judge in respect of the matters in issue because I have overseen the management of the matter since it came onto my docket. The extent of my knowledge of the issues is predominantly a familiarity with the pleadings and the deed of settlement.

Although the notice of motion of CSIRO only seeks a transfer of the proceedings under s5(4) of the CV Act and s86A(1) of the TPA, the application was conducted on an alternative basis that, in default of an order for transfer to the Supreme Court of Victoria under s5(4) or s86A(1), an order should be made under s48 of the Federal Court of Australia Act to transfer the proceedings from the Queensland Registry to the Victorian Registry of this court. The submissions of CPC and CSIRO addressed both the principal and alternative cases for transfer.

Section 5(4) of the CV Act provides :-

(4) Where:

(a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Federal Court or the Family Court (in this subsection referred to as the "first court"); and

(b) it appears to the first court that:

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

(ii) having regard to:

(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of a State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

(c) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court."

Section 86A of the TPA provides :-

(1) Where -

(a) A civil proceeding instituted whether before or after the commencement of this section( by a person other than the Minister or the Commission is pending in the Federal Court; and

(b) A matter for determination in the proceeding arose under Part IVA or Division 1 or 1A of Part V,

the Federal Court may, subject to sub-section (2), upon the application of a party or of the Federal Court's own motion, transfer to a court of a State or Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding.

(2) The Federal Court shall not transfer a matter to another court under sub-section (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that -

(a) The matter arises out of or is related to a proceeding that is pending in the other court; or

(b) It is otherwise in the interests of justice that the matter be determined by the other court.

....."

CSIRO submits that the claim is essentially one for breach of contract with a claim for misleading and deceptive conduct "tagged on" to the contract claim to attempt to enliven the jurisdiction of this court. It also submits that a failure of the compromise was always going to give rise to claims for breach of contract which the parties by their deed agreed would be governed by the laws of Victoria and which were submitted on a non-exclusive basis to the jurisdictions of the courts of the States of Queensland and Victoria (clauses 22 and 23 of the Deed of Settlement).

CPC submits that its claim is essentially one for misleading and deceptive conduct whereby the making of the warranty in clause 10.2(d) constituted a representation of fact which was false. Although reliance is not pleaded, counsel for CPC submits that it is open on the pleading that CPC in reliance on the false representation give up its rights in respect of QG 101 of 1992 by execution of the deed of settlement. In those circumstances CPC submits the damages recoverable are calculated by reference to the value of the rights lost. Such a claim involves the court in assessing the likelihood of CPC having succeeded in the previous litigation and the relief which would as a matter of probability have been granted in that suit. Depending upon whether the damages calculated in this way are higher or lower than the damages calculated for breach of contract in respect of the non-performance by CSIRO, including the breach of warranty claim, CPC submits it may elect to recover under the cause of action which produces the greatest recovery to it. This follows, CPC submits, because the measure of damages for breach of the warranty may not be the same as the recoverable damages under s82 of the TPA: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503 - 506.

From the history of the previous litigation it is apparent that to value the rights given up will involve making an assessment of many, if not every, issue raised in each of the previous proceedings. On one view, that may ultimately require an assessment of the likelihood of success by CPC in the 1991 action in the Supreme Court of Queensland for specific performance of the alleged joint venture agreement and the likelihood of commercial success of that joint venture.

As now articulated, the claims of CPC are separate and discrete and do not arise out of the same substratum of fact. The claim under the TPA is complete upon the making of the deed of settlement containing clause 10.2(d). It involves no conduct of CSIRO subsequent to the execution of the deed of settlement. The claim for breach of contract takes as its starting point the existence of the deed of settlement giving valuable enforceable rights in respect of future performance under the deed. Save for the claim for breach of the warranty contained in clause 10.2(d), the common law cause of action relates to facts and events occurring after the making of the deed of settlement which CPC alleges constitute breaches of contract giving it, at that later point in time, a right to substantial damages for breach. If the facts as warranted in clause 10.2(d) are proved to be false, the breach of the warranty occurred and was actionable immediately upon the deed becoming operative and binding on CSIRO.

The only issue of fact common to both the TPA claim and to the common law claims is whether the facts warranted in clause 10.2(d) were correct or not and that involves an examination of conduct which occurred prior to the entry into the deed of settlement by the parties to it.

Two matters flow from the above analysis of the claims. The first is that for the purposes of s5(4)(ii)(A) I am of the opinion that apart from the CV Act and any law of a State relating to cross-vesting of jurisdiction, a substantial part of these proceedings would have been incapable of being instituted in this court because they are substantially separate and disparate from the claim under s52 of the TPA and do not arise out of the same substratum of fact: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 474, 512; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173 at 180. On my view the proceedings were capable of being brought in the State Courts of Queensland or Victoria having regard to the forum clause. The proper law of the compromise is Victorian.

Because the matter is substantially one which traditionally would have been brought in the Supreme Court of either Queensland or Victoria, and because the cross-vesting legislation "should not be regarded as an invitation to litigate traditional State matters in the Federal Court" (per O'Loughlin J in Lamshed v Lamshed (1992) 35 FCR 111 at 114), there is a predisposition to transfer such matters to the Supreme Court of the applicable State. This flows from a consideration of the preamble to the CV Act: Mansell v Cumming (1989) 86 ALR 637 at 643; Lamshed v Lamshed at 114; Commonwealth v Silverton Ltd (1991) 103 FLR 251 at 257. However, the CV Act in s5(4)(b) requires that the interests of justice be considered in determining whether it is "more appropriate" that the proceedings be transferred to the Supreme Court. Consequently, the interests of justice may override any predisposition to transfer based upon the statutory purpose of the CV Act: Tribond Developments Pty Ltd v Griffin (1997) 73 FCR 153 at 157 - 258.

CPC submits that the proceedings are not more appropriately dealt with in the Supreme Court of Victoria for the following reasons :-

(a) the delay in bringing the application for transfer;

(b) the need for management of the litigation and the familiarity this Court has with the issues raised;

(c) the ability of the Court as a national court to hear evidence in Melbourne and Brisbane as required;

(d) CPC would be disadvantaged in having to litigate in the Supreme Court of Victoria because :-

(i) its legal advisers do not practice in that court;

(ii) its business would be disrupted by its senior management being absent from Queensland;

(iii) it would be denied procedural advantages available in this Court.

For reasons I gave earlier, the delay in the hearing of the application is fully explained by the conduct of the litigation to date.

CSIRO contends that the issues which are raised by CPC as being the legal issues warranting retention of the proceedings in this Court, are not open on the present pleadings. CSIRO submits that the loss and damage attributable to the false and misleading conduct pleaded is the extent to which the rights received by CPC under the deed of settlement were diminished, if at all, on the assumption that the alleged breach of warranty or misleading and deceptive conduct is made out. This submission raises serious questions in my mind as to whether or not the discovery to date has addressed the wider and different issues CPC says lie at the heart of its claim and whether the interlocutory contests as to the state of the pleadings are finished or are about to resume. I am of the view that the litigation requires close management. However, this court is not the only court which manages long and complex cases. The Supreme Court of Victoria has detailed rules for cases entered on the Long Cases List. The rules are published as "Guide to Long Cases List Practice", Second ed., October 1997. Management under those rules is comparable with case management in this court. Further, for reasons stated earlier and more so if the issues are wider than previously realised or addressed in this court, there is no particular investment in or familiarity by any judge of this court in the litigation to the stage presently reached. The conduct of the litigation to date is a neutral factor as to the issue of appropriate forum. However the conduct of the future management of the litigation needs continuity up until trial in whatever court the trial is to be heard.

On the totality of the material read on the application it is clear that the bulk of the relevant witnesses and the relevant documentation is in Melbourne. It is also clear that Mr Dart, the Chief Executive of CPC intends to attend on each day of the trial wherever it is held. Therefore he will, if necessary, be in Melbourne for a considerable period of time. For CSIRO it is said that a long protracted trial in Brisbane will have severe consequences to its management structure including those who physically use the technology which is situated in Melbourne which in turn will impede the commercial exploitation of the technology. Practical considerations require that the substantial part of the trial take place in Victoria and CPC in its material does not seriously dispute that this is so. Rather, CPC submits that the problem is adequately dealt with by a Brisbane based judge sitting in Melbourne as necessary, otherwise the proceedings be continued in Brisbane.

The estimate of the length of the trial is in months rather than weeks.

The cost to the Court, which is an irrecoverable cost, of a Queensland judge sitting in Victoria for some months is not an efficient use of the court's resources. If the trial is to proceed substantially in Melbourne that is a significant factor in favour of transferring the proceedings to Victoria for their future management and disposition.

The transfer of the proceedings to the Supreme Court of Victoria would not prevent CPC's present legal representatives continuing to act for CPC in the transferred proceedings: s5(8) of the CV Act. Nor is the conduct of civil litigation in the Supreme Court of Victoria radically different from the conduct of litigation in this court or in the Supreme Court of Queensland with which CPC's present legal advisers are more than familiar.

Finally, CPC submits that it would be procedurally disadvantaged because it would be denied the benefit of the Evidence Act 1995 (Cth), the benefit of the offer to compromise regime under O23 r1 and r11(4) of the Federal Court Rules, the benefit of the court appointed expert and the benefit of the guidelines to expert witnesses recently published by this Court and the Law Council of Australia. The differences in approach between this Court and the Supreme Court of Victoria or the procedural law of Victoria under these heads is not so significant as to justify retention in this court if there are other substantial factors in favour of ordering transfer.

Overall the decision to transfer or not transfer a proceeding under s5(4) involves a "nuts and bolts" management decision as to which court in pursuit of the interests of justice it is more appropriate to hear and determine the substantive dispute: Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714.

It is unfortunate that the issue of transfer was not resolved earlier with a timely formulation of the s52 claim to identify which was the more appropriate court to hear the case as Kiefel J intended. Nevertheless the application has always remained alive and the work done to date has progressed the matter and will not be lost. I am of the view that if the matter is to be transferred it should be done now and not be delayed until the matter is ready for trial.

Having regard to the nature of the dispute, the proper law of the contract, the agreement to submit to the jurisdiction of the State Courts of Victoria, the likely length of the trial, it being predominantly heard in Melbourne, and, the interests of justice, the Supreme Court of Victoria is the more appropriate court to hear and determine the substantive dispute. In coming to that view I acknowledge that there will be some inconvenience to CPC. However that is an unavoidable consequence of litigation between litigants resident and carrying on business in different States or Territories of Australia.

The considerations which persuade me that the Supreme Court of Victoria is the more appropriate court to hear and determine the substantive dispute also calls for the exercise of the discretion under s86A of the TPA to transfer the trade practices issues in the within proceedings to that Court.

I therefore propose to order that the proceedings be transferred to the Supreme Court of Victoria.

I have considered the submissions on the question of costs. I am not persuaded that the ordinary practice of making the costs of the application costs in the cause where transfer is ordered (Mansell v Cumming (1989) 86 ALR 637 at 644) should be departed from. The deed of settlement contemplated that proceedings may be initiated in Queensland. The inconvenience to CSIRO, if any, from CPC filing in this court rather than the Supreme Court of Queensland is the same. It is simply that the proceedings are in Queensland rather than the particular court in which they were commenced.

It must have been obvious to CSIRO in agreeing to the jurisdiction clause that there was a real likelihood that it may be availed of having regard to the history of the litigation. If litigation was to be begun by CPC the probability was it would be in Queensland. CSIRO knew that litigation in Queensland would cause it real practical problems because of the substantial Victorian connection, nonetheless it agreed to the clause. CPC ought not be penalised by an order for costs for exercising its choice to initiate proceedings in this State. Nor was CPC's opposition to the transfer so unmeritorious as to justify a costs order being made against it. The formulation of the trade practices claim made by CPC on the application demonstrated that s5(4)(b)(ii)(A) of the CV Act was made out. The formulation also brought out that the preparation to date may well be far from complete and reinforced the desirability of ordering transfer now rather than later.

Other Matters

On 7 August 1998 I reserved until the hearing of the motion the question of costs allegedly thrown away by CPC in preparing to argue the motion on that day. The motion was not listed for hearing on that date. The only notice of motion listed for hearing was that filed by CPC on 3 July 1998. Otherwise the matter was listed for directions only.

In the circumstances I am not satisfied that CPC is entitled to an order for costs. The preparation of CPC on the prior occasion was reflected in the presentation of its opposition on the hearing of 16 October 1998 and will be caught up as part of its costs in the cause.

I also reserved the question of costs on the notice of motion of CPC filed 3 July 1998. That application was necessary. It was agreed to on the return date. CPC should have its costs of and incidental to the notice of motion filed 3 July 1998 to be taxed if not agreed.